The Federal Court says the IRCC's ruling on the applicant's rehabilitation is unfair
A person convicted of a serious crime in the past may be deemed inadmissible to enter Canada. No of how much time has passed since a person's sentence was completed, they must apply for criminal rehabilitation to enter Canada.
In Gosh v. Canada (Citizenship and Immigration), the Federal Court issued a decision at the end of March on the issues of serious criminal inadmissibility and rehabilitation.
Even though Gosh gave ample proof, the IRCC official assigned to his case denied his permanent residence application because he had not been rehabilitated and was still criminally inadmissible to Canada.
In 2002, Gosh, an Israeli citizen of Palestinian descent, entered Canada and applied for refugee status. In 2004, Canadian authorities determined that he qualified as a Convention refugee and granted him permanent residency.
Gosh was found guilty of three charges of aggravated assault with a deadly weapon and one count of reckless driving in 2006. The assault and driving convictions resulted in consecutive sentences of two and a half years in jail.
As a result of these convictions, Gosh lost his permanent residence status in Canada in 2007 and was declared inadmissible on the grounds of serious crime. Even though a removal order had been issued, he could stay in Canada because he qualified as a "protected person."
In 2020, Gosh submitted his application for permanent residence in Canada under section 25(1) of the Immigration and Refugee Protection Act (IRPA) based on humanitarian and compassionate grounds. He could apply for Canadian permanent residency status as a protected person.
Only by receiving an exception on H&C grounds was he able to reinstate his permanent resident status after being ruled criminally ineligible. He said he had changed for the better after committing the offences, so he should be granted H&C relief. The immigration official denied his application.
Gosh has filed a petition for judicial review of the denial of his application because it was made without due process. The court ruled that the immigration officer's view of the defendant's likelihood of successful reintegration into society was irrational.
Gosh included many examples of his progress toward recovery in his application. His convictions date back more than 15 years, and he has regretted his criminal behaviour.
His behaviours back then were clearly not representative of who he is now. Having successfully established himself in Canada, running his own business since 2008, and being in a committed, long-term relationship were all signs of his rehabilitative progress. He could provide for himself, his fiancée, and her kids.
An H&C officer's decision will hinge on whether or not the specifics of the case outweigh the overarching public policy of typically excluding those with substantial criminal records from gaining permanent residence status.
The officer recognised the applicant's sincere regret for his actions and subsequent efforts to clear his name in the eyes of the law. The investigator came to a conclusion that, despite the benefits, "the convictions are serious and merit some negative weight towards the applicant's establishment."
The court found that the officer had not reasonably engaged with the evidence because he had failed to grasp the significance of the applicant's clean, civil record and other indications of rehabilitation. Given the importance of this issue to the H&C determination, the officer's erroneous evaluation of it is a major reason why Gosh's application was denied.
Inadmissible foreign nationals in Canada may submit a Criminal Rehabilitation Application. Decisions on petitions for criminal rehabilitation involving significant criminality are decided at the discretion of Canadian immigration officers and are very subjective.
